More Mischief In The Lame Duck Session

The Combating Online Infringement and Counterfeits Act was introduced on 9/20/2010 by Senator Patrick Leahy of Vermont.  On 11/18/2010 it was placed on Senate Legislative Calendar under General Orders. Calendar No. 648.  On Thursday, the Senate Judiciary Committee unanimously approved the bill. summarizes the bill as follows:

“Combating Online Infringement and Counterfeits Act – Amends the federal criminal code to authorize the Attorney General (AG) to commence an action for injunctive relief against a domain name used by an Internet site that is “dedicated to infringing activities,” even where such a domain name is not located in the United States. Defines an Internet site that “dedicated to infringing activities” as a site that is: (1) subject to civil forfeiture; (2) designed primarily to offer goods or services in violation of federal copyright law; or (3) selling counterfeit goods.

“Requires the AG to maintain a public listing of domain names that the Department of Justice (DOJ) determines are dedicated to infringing activities but for which the AG has not filed an action. Allows parties to petition the AG to remove such a domain name from the list and obtain judicial review of the final determination in a civil action.”

This really sounds like a good idea, but there are a few problems.  A website called points out:

“…bill that would give the Attorney General the right to shut down websites with a court order if copyright infringement is deemed “central to the activity” of the site — regardless if the website has actually committed a crime. The Combating Online Infringement and Counterfeits Act (COICA) is among the most draconian laws ever considered to combat digital piracy, and contains what some have called the “nuclear option,” which would essentially allow the Attorney General to turn suspected websites “off.””

Wired further points out:

“But the law’s critics do not believe that giving the federal government the right to shut down websites at will based upon a vague and arbitrary standard of evidence, even if no law-breaking has been proved, is a particularly good idea.”

The idea here is to stop the pirating of music, music videos, and creative properties where the creators should be paid for their work.  That is a noble idea.  Pirating music is not a good thing, but it is evidently fairly common among college students.  I have no problem with efforts to put a stop to this practice, but the risk of abusing the law are tremendous.

If the AG wants to shut down a site that is politically opposed to an administration, this law would give them the right to claim copyright violations and shut down the site without due process.  I don’t trust any politician with that kind of power. 

This is a well-intentioned bill that needs more work.  I am hopeful that it will not be rushed through in the lame-duck session.  It needs some sort of controls built into it that will protect free speech rights of people who disagree with whatever party is in power.  It would be a really good idea to postpone this until it can be looked at more closely and brought into line with First Amendment rights.